Opinion
1:22-CV-00277-SPB-RAL
10-08-2023
FRANKIE L. BROWN, Plaintiff v. STATE CORRECTIONAL INSTITUTION-ALBION, CORIZON HEALTH, INC., CORIZON HEALTH OF PENNSYLVANIA, LLC, WELLPATH, LLC, CORRECT CARE SOLUTIONS, LLC, JERI SMOCK, SUPERINTENDENT MICHAEL CLARK, MAX GOETTESMAN, D.O. LISA BAIRDD.O., D.O. JOHN/ JANE DOE 1-10, ABC CORPORATION 1-10, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendants
REPORT AND RECOMMENDATION ON DOC DEFENDANTS' MOTION TO DISMISS ECF NO. 57
RICHARD A. LANZILLO, Chief United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that DOC Defendants' motion to dismiss the Amended Complaint for failure to state a claim (ECF No. 57) be GRANTED but that dismissal of certain claims be without prejudice and with leave to amend.
IL REPORT
A. Introduction and Procedural History
Plaintiff Frankie L. Brown initiated this action in the Court of Common Pleas of Erie County against the Pennsylvania Department of Corrections (“DOC”), the DOC's State Correctional Institution at Albion (“SCI-Albion”), Michael Clark, the former Superintendent at SCI-Albion, Jerri Smock, the Correctional Health Care Administrator (“CHCA”) at SCI-Albion (collectively, “DOC Defendants”), Dr. Max Gottesman, Wellpath, LLC (f/k/a Correct Care Solutions, LLC) (“Wellpath”), Dr. Lisa Baird, a Wellpath employee, Corizon Health of Pennsylvania, LLC, Corizon Health, Inc., and multiple “John Doe” and “ABC Corporation” Defendants. ECF No. 1-2. Brown's Complaint asserted a claim pursuant to 42 U.S.C. § 1983 for violation of his rights under the Eighth Amendment (Count I) and two state law negligence claims (Counts II and III) based on alleged deficiencies in the medical care he received while he was incarcerated at SCI-Albion. See id. Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446 based upon subject matter jurisdiction conferred by 28 U.S.C. § 1331.
Brown has voluntarily dismissed all claims against Corizon Health of Pennsylvania, LLC, Corizon Health, Inc., ABC Corporation 1-10, and John/Jane Doe 1-10 pursuant to Fed. R. Civ. P. 41. See ECF Nos. 44, 45, 65.
Wellpath and Dr. Baird filed an answer (ECF No. 27), Dr. Gottesman moved to dismiss Count I pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 28), and the DOC Defendants moved to dismiss all claims against them pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 52). After the Court granted Dr. Gottesman's unopposed motion to dismiss Count I (ECF No. 37), he filed an answer to the remaining claim against him (ECF No. 40). Thereafter, Brown filed an Amended Complaint as a matter of right pursuant to Fed. R. Civ. P. 15(a)(1)(B). ECF No. 55. Based on the filing of the Amended Complaint, the Court denied the DOC Defendants' motion to dismiss as moot. The Amended Complaint is the operative pleading before the Court.
Count I of the Amended Complaint re-asserts Brown's Eighth Amendment deliberate indifference to serious medical needs claim against Smock, Clark, Wellpath, and Dr. Baird; Count II asserts a negligence claim against all Defendants; and Count III is styled as a corporate negligence claim against Wellpath, SCI-Albion, the DOC, Smock, and Clark. ECF No. 55. The DOC Defendants have again moved to dismiss the claims against them pursuant to Rule 12(b)(6) (ECF No. 57), and the remaining Defendants have answered the Amended Complaint (ECF Nos. 59, 60). The DOC's motion has been fully briefed and is ripe for decision. See ECF Nos. 58, 63.
B. Material Facts
The following facts are summarized from Brown's Amended Complaint (ECF No. 55) and accepted as true for purposes of the DOC Defendants' motion to dismiss.
Brown was incarcerated at SCI-Albion from October 2016 until approximately June 9, 2021. Brown has epilepsy. To manage the symptoms of his condition, he began taking Dilantin in 2012 and Depakote in 2019. In or around May 2020, an SCI-Albion medical provider increased his Dilantin prescription to 500 mg. Brown believes this increase was done by Dr. Gottesman. “According to the Physician's Desk Reference, Dilantin should not be administered at more than 400 mg at any one time for an oral dose.” ECF No. 55, ¶ 23. Brown adds that “[w]hen a patient's Dilantin prescription is increased, it is important to monitor the level of Dilantin in their blood to prevent a Dilantin overdose,” and “a simple blood test” exists for this purpose. Id., ¶¶ 25, 26. However, SCI-Albion medical personnel did not monitor Brown's blood levels after they increased his dosage.
On or about June 10, 2020, Brown's vision blurred, and he felt weak and “as though he was going in and out of consciousness.” Id., ¶ 28. Brown's cellmate called for emergency assistance. Thereafter, officers brought Brown to the infirmary, where he remained for the night. The next morning, he awoke to find himself being transported by ambulance to UPMC-Hamot Hospital. Id., ¶ 31.
“Upon admission” at UMPC-Hamot on the morning of June 11, 2020, “Brown was noted to be weak and fatigued, with numbness, tingling, double vision, and could not ambulate.” Id., ¶ 32. Additionally, “(h]is Dilantin level measured 52.8 mcg/mL, which is significantly elevated from a normal range of 10-20 mcg/mL.” Id., ¶ 32. Admitting physician Dr. Shakoor determined that Brown had “suffered from Dilantin toxicity,” and ordered that Mr. Brown be aggressively hydrated and undergo a neurology consult.” Id., ¶ 34. Brown also stopped receiving Dilantin. His Dilantin levels “took several days to return to normal.” Id., ¶ 35.
Two days later, while still at the hospital, Brown suffered a seizure. “Neurology resident physician Dr. Sergiu Abramovici, in a note co-signed by Dr. Daniel Kinem, noted that his seizure may have been caused by the Dilantin intoxication.” Id., ¶ 37. Thereafter, the neurologists increased Brown's Depakote to 500 mg BID. Throughout the duration of his hospitalization, Brown complained of general weakness, weak legs, headaches, and pain in his chest and abdomen. “Brown was also noted to be a fall risk and was only able to ambulate out of his bed with the assistance of a walker.” Id., ¶ 42.
On June 16, 2020, Physical Therapist “Kloss noted that Mr. Brown was appropriate for discharge provided that he would have access to a wheeled walker and further noted that Mr. Brown ‘would benefit from HHC PT if his facility allows for this.'” Id., ¶43. Thereafter, medical personnel discharged him.
After he returned from the hospital, “Brown submitted a grievance to SCI-Albion alleging that the medical staff improperly raised his Dilantin prescription.” Id., ¶ 45. A grievance officer denied his grievance because “they could not identify any medical neglect” in Brown's medical records. Id., ¶ 46. “In response, Mr. Brown requested his medical records, but this was denied” as well. Id., ¶ 47.
Brown spent the next two weeks continuing to recover in SCI-Albion's infirmary. On the day of Brown's return, June 16, Dr. Baird observed him “wobbl[ing] back and forth when” he “st[ood] with” a “walker.” Id., ¶ 53. The next day, Nurse Tina Sterling similarly noted Brown's “slow, stuttering gait” when he walked with a walker. Id., ¶ 55. On June 18 and 19, Dr. Baird memorialized Brown's leg tremors and that he struggled to walk with a walker and stand independently. “On June 20, 2020, both Dr. Erin Hayton and nurse Kathleen Lock observed noticeable tremors in Mr. Brown's legs while ambulating with a walker.” Id., ¶ 58. On June 21, Nurse Kelly Kantola noted Brown's complaints of weak legs; CRNP Larry Kniess observed Brown's weakness and shaky legs the following day; and “Defendant Dr. Baird noted that Mr. Brown's right leg was ‘still wobbling back and forth when standing with walker'” the day after that. Id., ¶ 61. On June 23, Dr. Baird also “advised Mr. Brown to use a walker unless someone [wa]s present to stabilize him as he walked and that he should try to walk for a minimum of 10 minutes 3 times a day.” Id. On June 30, 2020, Brown was discharged from the infirmary. At that time, Dr. Baird noted that Brown could walk without a walker, but he still experienced tremors and twitching in his legs and “his right knee locking while walking.” Id., ¶ 63. Brown was provided with a wheeled walker in exchange for the wheelchair.
Also on June 16, 2020, Dr. Baird submitted a request for a physical therapy consultation, though he “noted that due to ‘covid restrictions' physical therapy was not available at that time.” Id., ¶ 50. While awaiting physical therapy, Brown fell several times due to his weak legs. On July 10, 2020, “Brown lost his balance and fell while walking back from the medline with his walker, in rainy conditions.” Id., ¶ 68. He spent the next day in the infirmary, where a nurse noted his complaints of weakness and pain in his legs. The nurse also noted that Brown had a right leg tremor that persisted when he stood and walked, and that he “[d]ragg[ed] his right leg slightly with walker use.” Id., ¶ 70. This nurse did not, however, refer Brown to physical therapy. .
On July 17, Dr. Baird memorialized that Brown “suffered from right foot drop when walking, had involuntary movements, his leg violently sh[ook] when trying to walk,” and he “display[ed] horizontal nystagmus (rapid eye movement) when looking laterally.” Id., ¶¶ 72, 73. Dr. Baird then placed a neurology consult and issued Brown “a temporary wheelchair for distance purposes.” Id.,¶ 74.
While attempting to use the bathroom in his cell two days later, Brown's legs gave out beneath him and he fell to the floor. He fell again as he attempted to stand-up. CRNP Kniess examined Brown the next day and again noted his right foot tremor.
On July 21, 2020, Brown received the physical therapy consultation Dr. Baird had requested on June 16. Physical Therapist Louis J. Infrate observed that Brown struggled to walk and recommended Brown follow-up with him in one month. On July 23, 2020, two days after his physical therapy consultation, Brown was moved to a handicap cell with access to an accessible shower, but he did not have a follow-up physical therapy appointment with PT Infrate.
On August 4, 2020, Brown submitted an inmate request to Defendant Smock, “stating that his symptoms [we]re getting worse, with limited ability to stand up or walk properly and suffering severe back pain. He also requested ... to review his medical records and recovery plan from the physicians.” Id., ¶ 82. When he did not hear back by August 11, 2020, he submitted a second inmate request to Smock, “again asking for details about his Dilantin intoxication and what his medical plan moving forward was.” Id., ¶ 83. This time, Smock replied and explained that he “would need to see a physician for information relating to the plan . . . and that another neurology appoint is waiting to be scheduled.” Id., ¶ 84.
Dr. Baird next examined Brown on August 7, 2020. At this appointment, he “noted that no neurology appointment had yet been scheduled.” Id., ¶ 85. Brown expressed to Dr. Baird that he continued to suffer from bad muscle spasms and had “new symptoms of urinary incontinence and erectile dysfunction, pain in his right distal posterior leg, and numbness in his right knee.” Id., ¶ 86. Additionally, Brown stated that “he believed he may be having seizures and was observed rolling into the corner and mumbling to himself.” Id., ¶ 86. Dr. Baird again observed that Brown had “right foot drop” and “involuntary movements in his leg with violent shakes” when he tried to walk. Id., ¶ 87.
On August 21, 2020, SCI-Albion personnel scheduled Brown's neurologist consultation for September 8, 2020, via telemed. At this telemed appointment, neurologist Dr. Weisman examined Brown and offered additional testing, including an MRI. “Nurse Hayton also noted that Mr. Brown had fine tremors in his right leg and could only stand with instability.” Id., ¶ 89.
Brown's medical records indicate that his Depakote prescription was increased on September 11, 2020.
On September 17, 2020, Brown was in his cell when he suffered another seizure. “Despite this seizure, no new consult with neurology was placed until September 23, 2020, and even then, the appointment scheduled was not until December 15, 2020.” Id., ¶ 91.
Brown underwent the MRI on October 5, 2020. When he had not received the results by November 5, he submitted an inmate request form asking for the results and information about his medical treatment plan. Dr. Baird responded that “the MRI results did not show any abnormalities and advis[ed] him to put in a sick call for more information.” Id., ¶ 94.
SCI-Albion Medical personnel increased Brown's Depakote dosage from 1000 mg to 1500 mg per day in mid-December. “[A] few days later, Mr. Brown started experiencing symptoms similar to the June 2020 Dilantin intoxication event, including nystagmus (rapid eye movements), blurred vision, weakness, fatigue, chest pain, and lack of appetite.” Id., ¶ 96. SCI- Albion brought him to the UMPC-Hamot emergency room. “While he was not admitted to UPMC-Hamot, he was advised to keep his Depakote dose at the previous level of 1000 mg per day.” Id., ¶ 98. Brown also underwent a CT scan, “which revealed a laceration and hematoma[] that is believed to be a result of the fall that occurred in July of 2020.” Id., ¶ 99.
Dr. Longnecker examined Brown after he returned to SCI-Albion. Afterwards, Dr. Longnecker submitted a physical therapy consultation request and scheduled a follow-up appointment for May 11, 2021. “[I]n April of 2021, the outside neurologist renewed Mr. Brown's need for a handicap cell and ordered a PT consult.” Id., ¶ 101.
Brown was released from SCI-Albion in June 2021. At that time, he relied upon a wheelchair for mobility. By January 2022, Brown could ambulate with a cane.
On January 6, 2022, Brown saw Paul Varahrami, M.D. After examining him, Dr. Varahrami “noted that Mr. Brown has neurologic sequelae due to the Dilantin overdose, which includes foot drop and myoclonus on his right foot,” as well as “sensory deficits, weakness, abnormal coordination and abnormal reflexes.” Id., ¶¶ 106, 108. Dr. Varahrami then referred him to physical therapy and neurology appointment.
Brown began physical therapy on January 19, 2022, and saw neurologist Dr. Jiang on March 23, 2022. Brown subsequently underwent an EEG and MRI per Dr. Jiang's directive. His EEG results were normal; his MRI results are not reported in the pleadings.
C. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally considerjs] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)). To survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
D. Analysis
The DOC Defendants argue that Count I must be dismissed because the Amended
Complaint fails to allege facts to support the personal involvement of any DOC Defendant in Brown's inadequate medical care. They next contend that the sovereign immunity protects them from Count II and the DOC and SCI-Albion from Count III, and that Count III is inapplicable to Smock and Clark. The Court will address these arguments in turn.
The DOC Defendants additionally argue that the Amended Complaint should be dismissed because Brown has not exhausted his administrative remedies as required by 42 U.S.C. § 1997(e)(1) of the Prison Litigation Reform Act (“PLRA”). See ECF No. 58, p. 10 (citing Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004) and 42 U.S.C. § 1997(e)(1)). As Brown correctly responds, however, “the PLRA's administrative exhaustion requirement applies only to inmates who file lawsuits while they are still incarcerated; it does not apply to the lawsuits of inmates ‘who ha[ve] been released ... for incidents concerning prison conditions which occurred prior to [their] release.'” Nelson v. Warden of C.F.C.F., 461 F.Supp.2d 316, 318 (E.D. Pa. 2006) (quoting Ahmed v. Dragovich,291 F.3d201,210 (3d Cir. 2002). Brown initiated this suit in September 2022, over a year after his release from DOC custody. Accordingly, Brown was not required to exhaust prison administrative remedies before filing this action.
1. The Amended Complaint fails to allege facts to support that Clark or Smock was personally involved in any conduct that could be considered deliberately indifferent to Brown's serious medical needs.
To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). The DOC Defendants argue that the facts alleged do not support Smock or Clark's personal involvement in any violation of Brown's Eighth Amendment right to adequate medical care. See ECF No. 58, pp. 5-6.
The DOC Defendants are correct that each defendant must have had “personal involvement” in the deprivation of a constitutional right before he or she faces liability under 42 U.S.C. § § 1983. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013). This means that each defendant must have played an “affirmative part” in the complained-of misconduct, and liability “cannot be predicated solely on the operation of respondeat superior" Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). A defendant's personal involvement can be shown by alleging facts to support that he or she “participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
Smock and Clark's positions also raise potential supervisory or policymaker liability. Like that of any defendant, a supervisor's liability must be based on “personal involvement in the alleged wrongs.” Rode, 845 F.2d at 1207. “[A] supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). But like any other official, a supervisor faces liability if he or she participated in violating the plaintiff s rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K., 372 F.3d at 586 (citation omitted). Liability may also attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g, Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013).
Neither Smock nor Clark is alleged to be a medical professional. The Amended Complaint's only indication of their functions at SCI-Albion is its identification of their respective titles-Smock as Correctional Healthcare Administrator, and Clark as the former Superintendent of SCI-Albion. See ECF No. 55, ¶¶ 6-7. The factual allegations of the Amended Complaint likewise do not support that either had more than an administrative role at the prison or that either was directly involved in Brown's medical care. As such, the allegations do not support a claim. When a prisoner is under the care of physicians or other medical personnel, as the allegations of the Amended Complaint clearly establish Brown was in this case, correctional health care administrators and other non-medical personnel normally are not responsible under § 1983 for deficiencies in the medical care provided by medical personnel. See Pearson v. Prison Health Serv., 850 F.3d 526, 540 n.4 (3d Cir. 2017). Furthermore, non-medical prison officials typically are not considered to have acted with deliberate indifference under the Eighth Amendment when they fail to respond to the medical needs of an inmate already being treated by prison medical authorities, or if, as non-physicians, they defer to the medical judgment of the inmate's treating medical staff. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (holding that non-physicians cannot “be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor”). “If a prisoner is under the care of medical experts ... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). “[A]bsent reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Id. The allegations against Smock and Clark do not support a basis for extending liability for medical neglect to either of them.
The Amended Complaint first mentions Smock in a quote from a grievance Brown submitted after he was discharged from UMPC-Hamot on June 16, 2020. He wrote that Smock “apologized for the situation [he] had endured” and told him that “the psychiatric department had no right to interfere with medical treatments.” ECF No. 55, ¶ 45. This apology relates to past treatment decisions made by others; it does not make Smock responsible for those decisions or for any alleged prospective deficiencies in treatment. The chronology described in the Amended Complaint reflects that Brown was consistently under the care of medical professionals from both inside and outside SCI-Albion. Based on the facts alleged in the Amended Complaint, Smock's “apology” represents, at best, a gesture of support for Brown rather than evidence of direct involvement in his medical care.
Brown next alleges that “[t]he failure to make physical therapy available to inmates, including specifically to Mr. Brown was a decision made by Defendant SCI-Albion healthcare administrators, including Defendants Ms. Smock and Mr. Clark,” because Dr. Baird “was told that physical therapy was administratively not available due to COVID-19 restrictions.” ECF No. 55, ¶¶ 53, 117. This allegation fails to support Brown's claim for at least three reasons. First, it represents pure speculation regarding Smock and Clark's role in temporarily suspending physical therapy appointments during the COVID-19 emergency. See Theron v. Cty. of York, 2012 WL 425259, at *3 (M.D. Pa. Feb. 9, 2012) (“Alleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement.”). Second, it does not represent Smock or Clark's involvement in Brown's medical care. At best, the allegation surmises that one or both adopted a generally applicable policy that balanced the risks of transmission of COVID-19 against the risks of a temporary suspension of physical therapy services. And third, as a policy that balanced these risks, it does not support an inference of deliberate indifference.
Next, Brown avers that although “Dr. Baird placed a consult request for a neurology appointment, Defendants, including ... Ms. Smock, and Mr. Clark, did not take appropriate steps to ensure this appointment was timely scheduled.” Id., ¶ 80. He adds that he had to submit two inmate requests to Smock before she responded to his concerns and requests, and though she replied that “another neurology appoint [wa]s waiting to be scheduled,” she “did not explain why it had been weeks since the consult was placed with no appointment made.” ECF No. 55, ¶ 84. These allegations are similarly inadequate to support a claim against either Smock or Clark. They merely support that Smock conveyed information to Brown regarding the scheduling of appointments with the medical professionals responsible for his actual care and that Smock and Clerk did not ensure that these professionals schedule a neurology appointment with the timeliness Brown desired or expected. See Alexander v. Fritch, 2010 WL 1257709, at *16 (W.D. Pa. Mar. 26, 2010) (“[p]laintiff ca[nn]ot impose liability against any of the [d]efendants based solely on his or her involvement with his correspondence, grievances and misconducts as such conduct is insufficient to establish personal involvement as required under 42 U.S.C. § 1983”), aff'd, 396 Fed.Appx. 867 (3d Cir. 2010).
Thus, the Amended Complaint does not allege facts sufficient to support a finding that Smock or Clark participated in or directed any violation of Brown's constitutional rights or knowingly acquiesced in a subordinate's violation of Brown's rights. The isolated administrative actions of Smock and Clark described in the Amended Complaint occurred in the context of extensive care and treatment provided by medical professionals. While Brown has alleged facts that certain of that care and treatment, including the initial Dilantin dosage error, fell below the acceptable standard of medical care, the incidental administrative roles of Smock and Clark presently alleged in the Amended Complaint do not support their involvement in that care or their own deliberate indifference to Brown's serious medical needs. Thus, the allegations of the Amended Complaint fail to state a § 1983 claim against either of these Defendants.
2. The Amended Complaint fails to state a negligence claim under Pennsylvania law against any DOC Defendant
Brown avers that all “Defendants breached their duty to Plaintiff through their negligent and careless. . . [f]ailure to prescribe an appropriate Dilantin dose,” “appropriately monitor Dilantin levels,” “appropriately administer Dilantin,” “provide appropriate” and “timely physical rehabilitation,” “provide appropriate” and “timely assistive devices,” “provide appropriate and timely neurology consults,” and “take all reasonable and necessary steps to prevent Mr. Brown's physical condition from deteriorating.” ECF No. 55, ¶ 126. “[B]road allegations,” such as the foregoing, “that attempt to implicate multiple defendants without delineating the individual conduct of each are legally insufficient” to support a claim against any defendant. Knepp v. Paraway, 2020 WL 7865401, at *7 (W.D. Pa. Nov. 18, 2020), report and recommendation adopted, 2020 WL 7864199 (W.D. Pa. Dec. 31, 2020) (citing Van Tassel v. Piccione, 608 Fed.Appx. 66,69-70 (3d Cir. 2015)). Instead, the plaintiff must delineate the conduct of each defendant upon which the plaintiff bases the claim against him or her. Brown alleges broadly that Smock and Clark are liable for any negligence that arose from their “administrative healthcare decisions.” Id., ¶ 127. As discussed above, the allegations relating to Smock and Clark do not support a finding of deliberate indifference to Brown's medical needs. As explained below, they likewise do not support a negligence claim against these Defendants or any other DOC Defendant.
The DOC Defendants first contend that they are immune from Brown's negligence claim based on sovereign immunity. The sovereign immunity afforded by the Eleventh Amendment generally provides states and state agencies, including the DOC and its officials acting within the scope of their duties, with immunity from state law claims brought in federal court unless, inter alia, this immunity has been waived by the state. Walton v. Harkleroad, 2016 WL 11480713, at *7 (W.D. Pa. Mar. 3, 2016) (citing 1 Pa. C.S. § 2310). The Pennsylvania Sovereign Immunity Act, 42 Pa.C.S. §§ 8521, et seq., extends this limited immunity to claims brought in state court. The Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence” in nine narrowly defined categories of conduct. Id. (citing 42 Pa.C.S. § 8522(b)). Apropos here is the medical-professional exception to immunity, which permits lawsuits against the Commonwealth for “[a]cts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.” 42 Pa.C.S. § 8522(b).
The other categories of cases excluded from immunity are vehicle liability; care, custody or control of personal property; Commonwealth real estate, highways and sidewalks; potholes and other dangerous conditions; care, custody or control of animals; liquor store sales; National Guard activities; and toxoids and vaccines. See 42 Pa. C.S.A. § 8522(b).
The DOC Defendants correctly contend that former SCI-Albion Superintendent Clark, SCI-Albion, and the DOC are not “health care employees” or “health care personnel” subject to the medical-professional exception to immunity under § 8522(b)(2). See e.g., Walker v. John Does 1-10, 2015 WL 5567928, at *4 (W.D. Pa. Sept. 22, 2015) (“the DOC is entitled, as an agency of the Commonwealth, to dismissal” of the state law negligence clam “in accordance with Eleventh Amendment immunity barring this Court's jurisdiction.”). State sovereign immunity therefore bars Count II insofar as the claim is asserted against these Defendants.
DOC may be vicariously liable for the conduct of its employees under the medical-professional exception to liability, as discussed below.
District courts within the Third Circuit and Pennsylvania courts have not been entirely consistent in assessing whether a healthcare administrator such as Smock is excluded from sovereign immunity under the medical-professional exception. See Lee v. Corizon Health, Inc., 2020 WL 4005638, at *8 (M.D. Pa. Jan. 14, 2020), report and recommendation adopted, 2020 WL 4003603 (M.D. Pa. July 15, 2020). But it appears that this determination depends largely on whether a CHCA's role was medical or administrative. Where a CHCA's functions include providing or directing medical services to inmates, she is considered a medical-professional within the meaning of § 8522(b)(2) and loses the protection of sovereign immunity. See Wareham v. Jeffes, 564 A.2d 1314 (Pa. Commw. Ct. 1989) (holding that a healthcare administrator fell within the “medical professional” exception to Eleventh Amendment immunity because “his function as chief health care administrator encompassed providing health care services to inmates pursuant to physicians' orders”). However, where the duties of a CHCA are entirely administrative, she is outside the medical-professional exception and retains sovereign immunity. See Coats v. Showalter, 2011 WL 10844923 (Pa. Commw. Ct. 2011) (holding that the health care administrator at SCI-Huntingdon fell outside the “medical professional” exception because her duties were entirely administrative, and she did not directly provide medical care to inmates). As discussed above, Smock's role, at least as it is alleged relative to Brown's care, was entirely administrative. Certain of Smock's duties may have had an incidental impact on the care provided to inmates such as Brown. But she is not alleged to have acted as a medical professional or provider as to that care or to have had direct medical oversight of the professionals who provided such care. Accordingly, the negligence claim against Smock is also barred by sovereign immunity.
In addition to being barred by sovereign immunity, the negligence claim against Smock also fails based on the absence of factual allegations to support the essential elements of the claim. The Amended Complaint characterizes this claim against Smock as “a professional liability claim.” ECF No. 55, ¶ 6. To state such a claim, Brown must allege facts to the following elements:
(1) the [medical professional] owed a duty to the patient; (2) the [medical professional] breached the duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm.”Id. (quoting Doe v. Hosp, of Univ, of Pa., 546 F.Supp.3d 336 (E.D. Pa. 2021)).
Also, Rule 1042.3 of the Pennsylvania Rules of Civil Procedure requires a plaintiff in a medical malpractice claim to file a Certificate of Merit (“COM”) covering each defendant who is the subject of the claim either with the complaint or within 60 days after its filing thereof. The COM must attest that there is a reasonable probability that the medical care described in the complaint fell outside of acceptable professional standards. Brown has submitted a COM as to Smock. See ECF No. 24. Doing so, however, is not a substitute for alleging facts sufficient to state a negligence claim against Smock.
The Amended Complaint does not plead facts to support any of these elements. Brown's general and conclusory allegations regarding Smock's administrative responsibilities do not support that she had an independent duty of medical care to Brown or that she breached any such duty. The absence of such allegations necessarily precludes a finding of proximate causation between any breach of duty by Smock and Brown's injuries. Accordingly, the negligence claim should be dismissed without prejudice against Smock and the DOC, and with prejudice against Clark and SCI-Albion.
Although state sovereign immunity shields the DOC “from suit for the negligent acts of the facilities themselves,” the DOC “may be liable under § 8522(b)(2) for the acts of their employees on a theory of respondeat superior.” Cornish v. City of Philadelphia, 2015 WL 4931758, at *7 (E.D. Pa. Aug. 18, 2015) (citing Thrower v. Pennsylvania, 873 F.Supp.2d 651, 658-59 (W.D. Pa. 2012); Brown v. Commonwealth, 2000 WL 562743, at *3 (E.D. Pa. May 8, 2000); Lor v. Commonwealth, 2000 WL 186839, at *4 (E.D. Pa. Feb. 4, 2000)). Brown's negligence claim against the DOC purports to be based, at least in part, on a theory of respondeat superior. It is recommended that the negligence claim against Smock be dismissed without prejudice because Brown may be able to amend his pleading to allege facts that place Smock within the medical-professional exception to immunity and sufficient to support the elements of a negligence claim against her. If Brown does so, the DOC, as Smock's employer, may be vicariously liable for Smock's negligence. Therefore, the negligence claim against the DOC also should be dismissed without prejudice.
3. Count Ill's corporate negligence claim should be dismissed with prejudice against the DOC Defendants.
Lastly, Brown asserts a claim of corporate negligence against the DOC, SCI-Albion, Smock, and Clark. “A corporation . . . which provides the exclusive and comprehensive medical services to prison inmates may be held liable under a theory of corporate negligence.” Davis v. Corizon Health, Inc., 2015 WL 518263, at *4 (E.D. Pa. Feb. 9, 2015) (citing Fox v. Horn, 2000 WL 49374, at *8 (E.D. Pa. Jan. 21, 2000) (predicting that the Pennsylvania Supreme Court would extend the doctrine of corporate negligence to state prison healthcare providers)). The DOC Defendants correctly maintain that Smock and Clark, as individuals, cannot be liable under a theory of corporate negligence and that sovereign immunity protects SCI-Albion and the DOC from liability. See Lor v. Com., 2000 WL 186839, at *4 (E.D. Pa. Feb. 4, 2000) (quoting Moser v. Heistand, 681 A.2d 1322 (Pa. 1996)) (A plaintiff cannot bring a “cause of action [that] arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital employees” because the medical-professional “exception to sovereign immunity does not permit suits based on “corporate negligence.”). Further, Brown states in his opposition brief that he “agrees with [sic] withdraw Count III against the [DOC] Defendants.” ECF No. 63, p. 20. Thus, Brown has abandoned his opposition to the DOC Defendants' motion as it relates to Count III against Smock, Clark, SCI-Albion, and the DOC and this claim therefore should be dismissed with prejudice.
E. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, it would be futile to allow Brown to amend the negligence claim against Clark and SCI-Albion and the corporate negligence claim against Smock, Clark, the DOC, and SCI-Albion. The Court should therefore dismiss these claims with prejudice. However, Brown may be able to cure the Amended Complaint's deficiencies in his Eighth Amendment deliberate indifference to serious medical needs claim against Smock and Clark and, potentially, his negligence claim against Smock. As explained, supra n.6, if Brown successfully states a negligence claim against Smock that is not barred by sovereign immunity, the DOC may face vicarious liability as Smock's employer. Accordingly, the Court should dismiss these claims without prejudice and with leave to file a second amended complaint within a reasonable time after the Court adopts this Report and Recommendation. If Brown fails to file a second amended complaint within such time, the Court should enter an order dismissing with prejudice all claims against the DOC Defendants.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the DOC Defendants' motion to dismiss the Amended Complaint (ECF No. 57) and dismiss Count I of the Amended Complaint without prejudice as to Defendants Smock and Clark, dismiss Count II with prejudice as to SCI-Albion and Clark and without prejudice as to Smock and the DOC, and dismiss Count III with prejudice as to all DOC Defendants.
IV. NOTICE
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).